LO WO LUN v. IP WING SHING AND ANOTHER

DCCJ 2231/2019

[2025] HKDC 1699

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2231 OF 2019

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(By Original Action)

(By Counterclaim)

（By Original Writ and Order to carry on proceedings made by Master June Cheung dated 5^th May 2022）

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JUDGMENT

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Introduction

1.  This is my judgment for a difficult matter concerning various pieces of land in the New Territories. Just like some other cases involving land in the New Territories, by the time of the trial (in this case, in March 2025) a number of the potential witnesses with first-hand knowledge of the key issues in dispute had passed away so that the parties could only adduce certain evidence in some other ways, for example by calling witnesses with alleged second-hand knowledge.

2.  At the trial, the Plaintiff Mr Lo Wo Lun (“P”) was represented by Mr Ernest Koo. The 1^st Defendant Mr Ip Wing Shing (“D1”) appeared in person. The 2^nd Defendant, Madam Cheung Yuk Ching (“D2”), acting as the executrix of the Estate of Lau Fun (“Madam Lau”), was represented by Mr Francis Yip together with Mr James Wong. The 3^rd Defendant-By-Counterclaim, Mr Wong Chi Kin (“D3”), acting as the administrator of the Estate of Chan Pui Ching (“Madam Chan”), was represented by Edward K H Ng. Mr Koo, D1, Mr Yip, Mr Wong and Mr Ng had all been extremely helpful, and I thank all of them for their most able assistance.

3.  Whilst the trial was conducted in Cantonese primarily because D1 was a litigant-in-person more comfortable speaking in Cantonese, it is clear from D1’s own oral evidence that he had the assistance of a bilingual law student, in addition to the assistance of a bilingual son who minored in commercial law in New Zealand[1]. All things considered, my decision is to write and hand-down this judgment in English.

Procedural History

4.  This action started on 7 May 2019 as a simple action between P and D1 for the vacant possession of a piece of land in Lot 937, DD 77, New Territories, Hong Kong which I shall call “the Yellow Area”. It was then expanded to include a claim of adverse possession against Madam Lau (and, on Madam Lau’s death, D2) of a much larger area which I shall call “the Red Line Area”. It was then further expanded to include a claim of right of way. D2, as the undisputed “paper-owner” of all pieces of land in question, counterclaimed vacant possession of all such pieces of land. D3 counterclaimed adverse possession and/or easement. There were claims of mesne profits. The precise boundaries of the various pieces of land forming the subject of this litigation had been marked-up on maps and placed before me. The parties placed expert reports before me but chose not to call their makers. The said parties all adduced oral evidence of factual witnesses.

5.  In my view, the best way to explain this matter is to succinctly describe the main thrust of each of the said parties’ cases sequentially.

P’s Case

6.  P’s case is that since “no later than 31 May 1999”, P had been in adverse possession of “the Red Line Area” by paying off a squatter then in possession of the land and taking over the possession of the land. That previous squatter was a farmer, who had since passed away, called Madam Law Yuet Ying (“Madam Law”). The payment was HK$28,000. P acted as if he was the sole owner of “the Red Line Area” by removing all of the fruit trees planned thereon by Madam Law, levelling and paving the land, installing water pipes and electrical wires, etc. P behaved like the sole and undisputed registered owner of the land and rented out parts of the land to tenants, collecting rent from them. Fences and gates with locks, etc., were openly erected on the land to enclose the land. The paper owner of the land in question, Madam Lau, had a civil cause of action in the form of the tort of trespass but she never sued P for the next 12 years so that Sections 7(2) and 17 of the Limitation Ordinance (Cap 347) should apply, with the effect that neither Madam Lau (before her death) nor D2 could ever repossess the land from P. As to D1, D1 was P’s tenant (loosely described as such) but stopped paying rent to P from 20 April 2018 onwards. P therefore sought to evict D1, and to recover “unpaid rent” in the total sum of HK$165,000, plus mesne profits at the rate of HK$15,000 per month, etc., from D1.

D1’s Case

7.  D1 filed a homemade Defence, plus amended versions of that homemade Defence, with the assistance of a law student who was a friend of D1’s daughter, and with the assistance of D1’s bilingual son who studied in New Zealand and minored in commercial law[2]. In gist, D1’s case is that he was only occupying the land in question via what he thought was a lease signed by P as a lawful authorized agent of the true landowner. D1 later clarified in Court, orally before me, that he had all the alleged unpaid rent saved up and placed with his wife, and that once I have decided who should be the proper recipient of such sums, he would pay them over to the correct recipient as determined by me.

D2’s Case

8.  D2’s case is that since about late 1971 or early 1972 the land in question was “licensed” by Madam Lau to Madam Law for Madam Law to “possess, occupy, use and look after” it under a “licence at will”. In or around October 2003, Madam Lau “consented to” another person arranged by Madam Law possessing the land in her place. Since possession of the land in question was with the authorization of D2 as the land’s paper owner, there was no adverse possession.

D3’s Case

9.  D3’s case is that for a period well-exceeding 12 years starting from 27 October 1993, Madam Chan had been in adverse possession of a piece of land which I shall call the Enclosed Area. Its paper owner, Madam Lau, had a cause of action in trespass but she never sued D3 during the 12 years in question so that Sections 7(2) and 17 of the Limitation Ordinance (Cap 347) applied, and so that neither Madam Lau (before her death) nor D2 could repossess the Enclosed Area from D3. D3 further claimed a right of way against D2, based on “the doctrine of lost modern grant” and user of an area which I shall call the Purple Area since 27 October 1993.

Witnesses – Overview

10.  The following witnesses gave oral evidence under oath, in this order of appearance: -

(1)  P[3];

(2)  D1[4];

(3)  D2[5];

(4)  D3[6]; and

(5)  Chan Kin Tak[7].

Assessment of Evidence

11.  The general principles on the assessment of evidence are well-known and had been appropriately summarized in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam). I apply the exact same principles in this case.

Evidence of P

12.  P adopted all contents of his witness statements and was then cross-examined. I found P’s evidence reliable and accept the same as true. In gist, P said his case (as summarized in §6 above) was entirely true and emphasized that his possession of the land in question since at least 1999, acting as if he was the registered owner and collecting rent in that capacity, was without the authorization or consent of the registered owner or any of her agents and thus “adverse”. P’s words in relation to this were, so far as material, as follows: -

“一直以來，本人圍封及出租「黃色部份」及「粉紅色部份」，與及本人安排及准許租客使用「綠色區域」作為出入口和汽車通道等等所有上述事情，全都是在本人作為「受爭議土地」的唯一管有人的情況下，由本人獨自處理及決定，本人從沒有徵求或得到「羅女士」及任何人的許可或同意進行上述事情，而「羅女士」及任何人 (包括「Lot 937RP」的註冊業主「劉芬」) 亦從沒有理會、詢問或參予過上述任何事情。事實上，多年來，本人從沒有見過「Lot 937RP」的註冊業主「劉芬」，亦從來沒有任何人代表或聲稱代表「Lot 937RP」的註冊業主接觸或聯絡過本人。”[8]

“「葉永盛」在他的《已再修訂抗辯書》第3、第4及第5段聲稱，在2003年9 月尾10月，即是在他簽訂「葉的租約」租用「黃色部份」之前，他要求本人帶業主與他見面，確認本人是土地業主的合法授權代理人，「葉永盛」並聲稱，幾天之後，在本人安排下他曾與業主劉芬、及一名羅月英女士和一名張先生見面，「葉永盛」更聲稱，在2003 年10 月7日簽訂「葉的租約」之前，他表明希望由業主劉芬或羅月英女士簽約。所有上述聲稱全不是事實，本人相信全是「葉永盛」與「劉芬」一起捏造出來的。事實上，所有有關本人與「葉永盛」簽訂「葉的租約」的事情，全都是由本人一個人以「出租人」身份進行的，從沒有牽涉其他人，亦沒有其他人參與。”[9]

“由本人與「葉永盛」第一次電話通話直至雙方簽訂「葉的租約」期間，「葉永盛」從沒有向本人提出或詢問任何有關土地的業主或土地擁有人等任何問題，更沒有要求本人安排「葉永盛」與業主見面，「葉永盛」亦從沒有表示希望與土地業主或其合法授權代理人簽約。一直以來，就雙方商討租約直至簽訂「葉的租約」的整個過程中，「葉永盛」只曾要求本人減少租金，當本人同意將租金減為5,500元時，「葉永盛」即時表示同意向本人租用「黃色部份」，跟著簽訂「葉的租約」。「葉永盛」從沒有向本人提出及或詢問本人是否有權租出「黃色部份」或簽訂租約等任何問題，而本人亦從沒有向「葉永盛」說過本人是土地業主的合法授權代理人，或是羅女士的親屬。”[10]

13.  P’s evidence was inherently probable. He was, of course, also cross-examined on the above. Nothing in P’s answers caused me to doubt the reliability or truthfulness of P’s evidence. For example, the following exchange took place, and nothing of value arose out of it: -

“問：會唔會其實就係羅女士批准你用嗰笪地作為特許使用人，licensee，同埋你係有交費用㗎？

答：梗係冇喇...

問：冇，okay。”

14.  In fact, certain lines of cross-examination were frivolous. For example, nothing of value arose out of this exchange: -

“問：會唔會其實羅女士係你嘅親戚，所以你咁信佢呀？

答：你唔好以為佢姓羅… 大家姓羅… 就係親戚…

問：唔係，我問你問題，係定唔係啫。

答：梗係唔係喇，完全係唔係親戚關係。

問：係。鄉里？

答：吓？

問：會唔會係呀？

答：鄉里，唔係。係完全唔識佢。

問：係。

答：完全冇關係。

問：係。”

15.  Since both Madam Lau and Madam Law passed away before the start of the trial, there was no sworn evidence from either of them which could contradict P’s sworn evidence. P’s sworn evidence was crystal clear, straight-forward and logical. I accept P’s evidence as entirely true. P was a squatter of the land in question completely unrelated and unknown to the paper-owner or any of her authorized agents and had been so since at least 1999. There was no authorization, consent or license of any kind from the paper-owner and the possession was plainly adverse. By the time P started this legal action in 2019, the relevant civil cause of action against P became time-barred, and the land became irrecoverable by the paper-owner.

Evidence of D1

16.  D1 adopted all contents of his two witness statements and was cross-examined. I found D1’s evidence unreliable. I should explain[11].

17.  Firstly, D1 claimed he met Madam Lau, the registered owner of the land in question, in 2003, through P’s arrangement[12]. That allegation was specifically denied by P. In fact, when P was giving evidence, P said D1’s story was a fabrication (see §12 above). Despite that, D1 never cross-examined P on this or any other part of P’s evidence, notwithstanding my explanation of the rule of Browne v Dunn (1893) 6 R 67 to D1 in Cantonese at the beginning of the trial, in these words: -

“官：你有冇任何訴訟經驗呀？

第一被告人：冇。

官：冇嘅，好，咁或者我用少少時間簡單解釋一下正常民事審訊嗰個流程，等你可以有意義地參與呢個審訊。其他人就知㗎嘞，不過我諗我要親自確保你知… 如果羅和倫先生作供，葉生你可以盤問佢嘅。盤問嘅規矩呢，有三大規矩係我要解釋嘅。第一規矩我哋法律學院叫 Browne v Dunn，意思即係咩嘢呢，如果你認為呢個證人宣誓之下嘅作供，即係包括佢採納嘅證人供詞入面嘅作供有虛假成分嘅，大話嚟嘅，咁你有責任喺佢喺證人台嘅時候向佢指出「我話你第幾段係講大話，你同唔同意？有冇解釋？」呢個係你嘅責任嚟嘅，如果你唔做呢，我有權喺判案嘅時候就話呢個係冇爭議嘅事實，即係我唔能夠畀你盤問嘅時候唔問，但係結案陳詞嘅時候又話佢講大話嘅，咁對佢唔公平吖嘛，你話人講大話都畀個機會佢解釋吖。

第一被告人：呢個知。”[13]

18.  As D1 indicated he understood the gist of the rule of Browne v Dunn, but still chose not to cross-examine P, or indeed to put any of D1’s allegations to P whilst P was giving evidence, and, when specifically asked, D1 gave no acceptable explanation as to why allegations were never put to P[14], it is my factual finding that D1 never took this litigation seriously.

19.  Secondly, D1 claimed he met Madam Lau but admitted he had never checked the alleged identity of the person he met. D1 admitted there was no photo, or indeed contemporaneous record, of any kind. The alleged meeting was said to have happened in October 2003, which was almost 22 years ago. D1 never saw Madam Lau (or the person claiming to be Madam Lau) before or after. There was no independent 3^rd party evidence that the alleged meeting ever took place, or took place as described by D1. There was supposedly a “Mr Cheung” in attendance but that “Mr Cheung” never gave evidence before me or collaborated D1’s story in any other way. The alleged identity of this “Mr Cheung” (if he existed at all) was unclear. In such a situation it would be dangerous to rely on D1’s unilateral assertions, because D1 could have remembered things wrong, or D1 could have been honestly mistaken[15]. I am not at all satisfied with the alleged reliability of D1’s evidence, especially since P’s sworn evidence contradicted it.

20.  Thirdly, D1 was specifically asked why he agreed to P calling himself “the lessor” instead of “the agent for the registered owner” in the written tenancy agreement. D1 gave no credible or acceptable explanation. This was material and unsatisfactory. The exchange went as follows: -

“官：證人，我想你睇184頁。

答：184，呢個睇到，睇到。

官：係呀，即係你望住喇。

答：係呀。

官：正中間呢，我見到有啲字係手寫嘅。

答：係，係。

官：喺兩個窿嘅中間喇。

答：係。

官：寫住「一年死約，一年生約」，係咪呀？手寫。

答：係，係，係，冇錯，冇錯，我自己覺得...

官：咁跟住我見到隔籬有個簽名，係咪你個簽名嚟？

答：係，就後屘嗰度我簽名嘞。

官：係，咁「一年死約，一年生約」係邊個加上去㗎？你加定係羅和倫加㗎？

答：羅生加㗎，佢哋話兩年租約通常都係咁開嘅。

官：但係係你要求定佢要求㗎？

答：佢要求，佢自己加落去，佢問我盛，因為話--佢哋咁講吖，佢哋做開地產呢，...

官：係。

答：如果租兩年呢，通常咁樣，如果話齋，你話佢咁樣加呢，可能你啲--有著有唔著。

官：係，係。

答：即係有著有唔著，大家都有--即係有著有唔著。

官：咁你喺隔籬簽名係表示你同意加咗呢個條款落去㗎嘛，係咪呀？

答：係吖，係吖，係吖。

官：係嘞，咁就係我哋而家問緊個問題囉，譬如左上角，你睇下，寫住「出租人羅和倫」㗎嘛。

答：係呀。

官：咁點解你又唔照辦煮碗扠咗出租人改為「代理人」咁樣呢，或者「業主代理人」咁樣呢？咁咪清楚囉，即係你都可以㗎嘛。

答：喀。

官：你唔好話「出租人即係咩嘢呀？」

答：出...

官：你話業主嘅代理人，咁清楚喇，咁你又唔出聲，好似「一年死約，一年生約」咁樣加上去，跟住再加簽嘅？

答：其實就冇諗到咁詳細，而家你咁講呢，如果真係諗得咁詳細呢，因為阿婆個業主就話畀咗阿--話大聲婆，即係羅月英，跟住羅月英就講畀羅和倫，話畀羅和倫，咁佢一個講一個，咪即係嗰度出租人，我哋以為佢係咪出租--即係代理人囉。

官：咁即係...

答：因為我...

官：...冇做係因為你以為意思一樣呀？

答：...我熱心啫，個意思一樣㗎，嗰個出租者阿婆，阿婆又出租畀佢，呢度盛，一路去。

官：以為意思一樣，寫低先吓，以為意思一樣。得，咁我理解嘞。係，古大律師，交番畀你，係。

問：咁其實喺185頁嗰度呢，你都會睇到呢份租約有兩劃橫線喺你簽名上面嗰度嘅。

答：橫線。

問：寫住「備註」嘞，係咪呀？

答：係。

問：咁其實呢個備註呢，亦都可以就係你可以加入你認為需要加入嘅一啲嘅條款喇，或者一啲嘅內容喎，係咪呀？咁你又冇做呢樣嘢喎，係咪呀？

答：係吖，係吖。

問：咁其實喺呢度亦都可以加入就係話，你可以寫清楚羅和倫確認佢自己係有業主授權代理租出呢塊地嘅咁，但係你亦都冇寫到喎。

答：當時邊會有--呢個講咗去呢一度，講落去都係佢代理會搞掂嘅，你邊度會諗到追番前面呢，你冇諗住我欠--我而家我係租咋嘛，我點--你講到好似邊個租又關我事呢啲嘢，唔關我事㗎嘛，我邊會諗到呢啲嘢啫，當時冇人諗到呢啲嘢。”[16]

21.  Fourthly, D1 was further asked why the contents of his written witness statement contradicted his oral evidence in a material area, namely, whether the “Mr Cheung” who contacted and spoke to D1 was suggesting to D1 the tenancy agreement was illegal or ineffective from the beginning, or just terminated with effect from a specific date. D1 gave no credible or acceptable explanation. D1 simply asserted a subjective belief that his two versions were “the same”. This was also material and unsatisfactory. The exchange went as follows: -

“問：麻煩你睇一睇番你個證人陳述書喇。我想你睇一睇喇有關嗰個講法呢…

答：證人陳述...

問：232頁，即係A嗰個文件夾嘅232頁吖。

答：232頁。200...

問：即係同一個文件夾吖，頭先我睇嗰個呢就係你嘅抗辯書喇，係咪呀？

答：36呀？

問：232。

答：232。

問：第七段。

答：232。

問：或者你自己都睇一睇第七段吖，你自己睇一睇。

答：好--我睇。

問：呢個呢係你個仔幫你制訂，你確認咗係正確嘅證人陳述書呀，係咪呀？

答：232。232，第七段。一、二、三...

問：係嘞。或約於2018年3月中呢係咪呀？

答：係吖。

唉，得嘞。

問：你睇咗喇嘛？你理解呢度寫咗啲乜嘢吖嘛？

答：呢度理解咗就係話...

問：唔係，你答我理解...

答：我...

問：...你明白喇嘛？因為我下一個問題問，就係因為你要理解咗呢一段寫乜嘢，我先至--你先至可以答到嘅。

答：我理解。

問：理解喇嘛？

答：理解。

問：好嘞，你同唔同意我嘅講法，你啱啱頭先所講嘅證供，確認嘅證供，話張生同你講業主已經取消咗羅和倫嗰個授權，同你而家呢度寫法係唔同㗎喎，呢度話業主唔承認羅和倫嘅身分，業主只係承認羅女士嘅身分，而仲有就係話羅和倫所簽署嘅租用合約係非法同埋無效㗎喎，即係話一直以來佢都冇授權㗎喎，係咪咁呀？

答：咁唔應--唔--你咁嘅講唔啱㗎…

…

…

問：而家個問題就係你同法庭確認咗，就係話張先生同你講，而家已經「取消咗」授權羅和倫去出租嗰個地嘞...

答：唔。

問：...代表業主嘞。

答：係吖。

問：明唔明呀？

答：明白，明白。

問：但係你呢個證人陳述書唔係咁講喎！呢個證人陳述書話唔承認羅和倫嘅身分喎！只係承認羅女士嘅身分喎！

答：乜好多人講都係承--承呀一個...

問：即係你覺得係一樣嘅？

答：係，我真係覺得一樣，但係...

問：係咪咁嘅意思呀？

答：...我真係覺得一樣㗎。”[17]

22.  One may say the single most important issue in this litigation was whether D1’s lease for the land in question was (1) authorized by the registered owner from 2003 until its termination or cancellation in 2018; or (2) unauthorized throughout. As a matter of law, the former would mean the possession by P or D1 was pursuant to a licence, while the latter would mean the possession was “adverse”. D1’s choice of words[18] in his written witness statement was at most equivocal and could in fact be indicative of the lease being unauthorized throughout. Since D1 was unable to explain[19] his choice of words (or the discrepancy between his written and oral words) when specifically asked, I am wholly unable to accept D1’s assertions on this issue. D1 appeared to have the means to contact the said “Mr Cheung” (if this person actually existed) and ask him to give evidence, but D1 chose not to[20]. I find D1’s evidence unreliable, and more likely to be false.

23.  Lastly, D1, a litigant-in-person, mentioned “estoppel” in his written witness statement. When asked about the concept, it was clear D1 did not have any real understanding as to what it was and did not even care what it was. This was telling. It is my factual finding that D1 was all along giving evidence not caring whether what he said in writing or orally under oath was true or false so that I should never rely on his words or place any real weight on the same when it comes to determining the issues in dispute. The relevant exchange went as follows: -

“官：麻煩你揭去下一頁吖。

答：下一頁。

官：第233頁吖。

答：好。

官：都係你個證人陳述書嚟嘅… 咁我就見到你寫「在不容反悔的原則下」。

答：唔。

官：咁呢個概念喺邊度嚟㗎？即係你...

答：誒...

官：...係咪有人教你或者話畀你知咩嘢叫不容反悔呀？即係呢個唔係一個--即係唔好介意我咁講喇，即係唔係一個整車師傅會用嘅字眼嚟㗎嘛…

…

…

答：我����仔識嘛。

官：你����仔話畀你聽呢個叫不容反悔？

答：係呀，佢直情讀商業法律嗰啲...

…

…

官：咁你個仔就會計師嚟㗎？

答：係。

官：咁佢有冇，同你解釋，喺佢嘅理解入面，咩嘢叫不容反悔呀？

答：我冇問，即係認真去--去深思喎。”[21]

Evidence of D2

24.  D2 adopted all contents of her two witness statements and was cross-examined. I found D2’s evidence unreliable and likely to be false. I set out my reasons below.

25.  Firstly, D2’s evidence on the issues in dispute was hearsay as she had no first-hand knowledge on those matters and was just attempting to give evidence based on her alleged recollection of oral conversations she said she had with her aunt (Madam Lau – the registered owner) many years ago. D2’s recollection of Madam Lau’s choice of words at the time in such alleged oral conversations was implausible and likely to be false. It is my factual finding that D2 either (1) remembered such conversations wrongly in an innocent way; or (2) fabricated such conversations in a dishonest way. I should and I do reject D2’s evidence. The following exchange in Court, selected by me as an example only, neatly illustrated the problem with D2’s evidence: -

“問：其實有好多段都有同樣嘅情況嘅，我想指出第22段就係，你會睇到，22段一開始就話係阿嬸話畀你知嘅。

答：唔。

問：I was told by my aunt. 係咪呀？

答：係。

問：咁即係裡面嘅內容你係完全冇親身嘅知悉㗎，啱唔啱呀？

答：係吖。

問：啱唔啱呀？

答：即係喺呢一段係囉。

問：係囉。

答：係。

問：如果有嘅，你就唔使講話阿嬸話畀你知喇，係咪呀？係囉係咪呀？好嘞，阿嬸幾時話畀你知㗎？

答：我大概...

問：你講呢樣嘢。

答：我大概10歲左右嘅時候喇。

問：你大約10歲喥嘅時候，阿嬸話畀你知？

答：係。

問：Okay。咁就我就覺得奇怪嘅，咁我又要將我覺得奇怪呢樣嘢話畀你知，睇下你有冇啲乜嘢嘅回應喇。

答：唔。

問：即係你大約10歲左右嘅時候，阿嬸係同你講，哦，我就就呢一笪地，就向羅月英女士就畀咗一個隨意許可，畀佢用，管有、佔用、照顧。係咪咁呀？

答：唔係。

問：唔係，咁係乜嘢呀？乜嘢唔啱呀？你講一講。

答：我大概10歲喥知道，阿嬸畀呢笪地佢用啫。

問：但係你唔係咁寫喎。我頭先都有問你嘞，就話你幾時阿嬸話畀你知喎，咁你又話你大約10歲嘅時候。咁跟住後面個內容就係咁講囉喎，係咪呀？你睇過好多次個囉喎，呢個證人陳述書，係咪呀？

答：係吖。

問：啱唔啱呀？

答：啱。

問：張女士，係咪呀？

答：啱。

問：係囉。

答：你再問一個--你再想問我咩嘢問題呀？

問：即係話，你大約10歲嘅時候，你個阿嬸就話畀你知，佢向羅月英女士畀咗個隨意許可，呢個字我相信就好多人都唔識咩嘢叫隨意許可呀，係咪呀？咁但係阿嬸就嗰陣時就同你講嘞，係咪呀？

答：佢話隨時收番囉。

問：係...

答：係可以隨時收番囉。

問：即係阿嬸都要話畀你知，可以隨時收番？你10歲嗰陣時候。

答：係呀。

問：點解阿嬸要話畀你知呢？嗰陣時你得10歲…

…

…

官：麻煩你睇下249頁吖。

答：249。好。

官：呢個英文版好仔細喎第三行，to possess, occupy, use...

答：係咪都仲係22段呢？

官：係呀。第22段...

答：Okay。

官：...駁落去囉。

答：係。

官：第三行。上面數落嚟。你個英文版係to possess, occupy, use and look after。

答：唔。

官：係咪真係咁講㗎當時？

答：係。

官：咁中文--咁佢同你傾偈用廣東話㗎嘛？

答：阿嬸同我--同我用廣東話，係。

官：咁呢四個字廣東話係咩嘢呀？

答：畀佢經營、使用、照顧，同埋係--possess係--佢去點樣處理。我嘅睇法係，佢點樣處理。

官：你肯定你10歲嘅時候，你阿嬸係同你講經營、處理，佢用呢啲字眼同你講嘢？你得10歲咋喎。

答：係呀。因為佢可以話，我買--我喺嗰度種菜種盛。

官：唔。

答：你種好啲菜，你就拎去賣喇。咁樣，咁我就覺得呢啲都係佢喺度點樣用，塞到嘅錢係點樣去--即係發展嗰笪地。

官：係。

答：畀佢咁樣用，即係當其時即係淨係愛嚟種嘢嘅啫，種菜、種劍蘭嗰啲嘅啫。

官：明白。

答：唔。

官：咁有冇特別原因，你係冇寫出個廣東話原文畀法庭參考下嘅呢？

答：我冇，我冇。”[22]

26.  Secondly, D2 also attempted to give evidence on her alleged recollection of oral conversations she said she had with Madam Law (who was a farmer of advanced age) many years ago. D2’s evidence on all those words alleged to have been used in the alleged conversations was similarly improbable and likely to be false. It is my factual finding that D2 either (1) remembered all of those conversations wrongly in an innocent way; or (2) fabricated all of those conversations in a dishonest way. I should and I do reject D2’s evidence. The following exchange in Court, selected by me as an example only, also illustrated the problem with D2’s evidence: -

“問：跟住你就話羅月英女士向你確認… 即係… 你嘅意思係佢喺你面前向你確認，係咪呀？

答：係。

問：Madam Law confirmed to me，係咪呀？

答：係。

問：係喺你面向你確認，係咪呀？

答：係。

問：咁就係--佢佔用嗰笪地，係以阿嬸嘅隨意許可人嘅身分，去用嘅，咁而喺98年嘅時候，呢個身分就改為終身許可人，我用廣東話譯我都覺得有少少困難，係咪呀？咁當時羅月英係同你咁樣講㗎，係咪呀？

答：係。

問：係咪呀？

答：係。

問：即係我--用我嗰個字眼講㗎，係咪呀？

答：係。

問：為咗公平起見，我亦都向你指出，就係--好難令人相信，羅女士佢係一個耕田嘅人，係會向你做一個咁嘅說話嘅，確認嘅。咁我唔知你有啲咩嘢，就呢方面想回應，還是補充呢？

答：呢個我唔覺得有啲咩嘢問題喇，因為阿嬸特登帶我去嗰度，即係我--我阿嬸帶去我見羅月英，羅月英見到佢嘅時候，阿嬸有話畀佢聽，第日阿嬸百年歸老嘞，或者佢丈夫都百年歸老嘞，笪地就係我㗎嘞咁樣，係咪？咁當其時羅月英婆婆亦都話，阿嬸同我講過㗎，呢笪地畀我隨時用㗎，用到佢死㗎咁，咁佢又話番呢啲嘢畀我聽啫。

問：唔同喎，你呢度寫唔係咁寫喎，同你而家講都有好大出入喎。

答：你--你講，你--點樣呀？點樣呀？

問：係咪呀？

答：你--你--話番畀我聽，我應該係點講？

問：係咪呀？唔係，我唔知呀，因為我唔在現場吖嘛，你在現場吖嘛。

答：Madam Law confirmed to me，羅月英婆婆確認話畀我聽，Madam Law was occupied the land as the licencee of my aunt.

問：喀。

答：係，即係話羅月英婆婆係可以使用呢笪地，係由我阿嬸畀佢嘅，under a licence at will--喺呢個licence as will之下用嘅，直至到喺980嘅--98年嘅時候，佢就改為係終身畀佢用囉。

問：就...

官：或者咁樣喇，即係我對於中英翻譯就有啲執著嘅，我以前...

答：係。

官：...私人執業做好多誹謗案...

答：Okay。

官：你頭先個廣東話證供就係話，「畀我隨時用，用到死」吖嘛。咁如果直譯番做英文，就應該係Let me use it until I die.

答：哦，咁樣可能...

官：係囉。

答：...係我用廣東話講得--講嘅時候，係好順，你用喇，用到去死，咁樣囉。

官：係。

答：係囉。

官：係嘞，咁但係呢個就係大律師個議題嘞，佢刻意問你，係咪當時係真係話係--即係licence at will，咁同--licence at will呢個字眼就同use it anytime有啲分別個喎，你明唔明呀？即係個問題個重點就係咁樣嘞，究竟當年嗰個廣東話字眼有冇可能係講緊話，你畀個牌我用到死咁樣...

答：唔--唔係牌。

官：唔會有個「牌」字咁樣㗎嘛，係咪呀？

答：唔會，唔會，冇牌嘅，係話...

官：係囉。亦都...

答：...畀你用。

官：...唔會係准許吖，即係一個...

答：喀。

官：...耕田嘅阿婆，唔會用...

答：係。

官：...准許...

答：係。

官：或者特許，或者牌，呢啲字眼㗎嘛。

答：唔會，係。

官：咁所以點解寫出嚟會變咗咁樣嘅呢？即係我唔係好理解喇。

答：即係你問我點解寫出嚟用licence at will？

官：係嘞。

答：喀，咁呢個我係跟番上面，上面有講過呢一個字眼，我都係咁樣寫番落呢一度啫，即係我要--而家我又唔記得咗係邊一段喇吓，我睇到係--一樣係咁樣寫，我就將佢寫番喺第30段呢度咁樣用法啫。

官：係。明白，咁即係其實佢唔係講licence at will，佢係講use it until I die咁樣，即係用到死吖嘛。即係會唔會其實唔係好準確呢？即係第30段呢個講法。

答：我唔覺得唔準確囉…”[23]

27.  Thirdly, D2’s words (or indeed choice of words) in her written witness statements clearly showed that D2 never cared about the accuracy of her evidence, which made her assertions untrustworthy. The following exchange, which was about “prepared” and “brought”, selected by me as an example, illustrated the problem: -

“問：寫到最尾嗰句嘅時候，英文係咁樣寫㗎，“My aunt signed a written consent prepared by Madam Law for Madam Law’s said application to the government.”

答：唔。

問：即係你同你嘅律師講，就係話--呢句--呢句--其實呢個--發生呢件事都係你冇親身認知㗎，係咪呀？

答：我冇親身喺--喺度嘅。

問：都係阿哥、阿嬸話畀你知嘅啫？

答：係。

問：喀，咁但係你係咁樣同律師講嘅，即係話阿哥、阿嬸同你咁講嘅。

答：係。

問：即係話阿嬸就當時就簽咗一份書面嘅同意書，而嗰份書面嘅同意書就係羅月英女士草--準備嘅，係咪呀？

答：係，喀。

問：係咪呀？

答：係。

問：喀。咁就--咁當然喇，你又冇見過呢件事喇，係咪？咁所以你未必答得到嘅，不過我就想知道睇下你講唔講到喇，即係你會覺得咦，羅月英可以準備一份文件畀阿嬸去簽呀？

答：係。

問：你嘅理解係乜嘢呢？即係羅月英點解可以準備到--即係佢嘅--有咩嘢能力可以準備一份咁嘅文件畀阿嬸去簽？即係你有冇咁嘅理解？或者你--我唔知嘅，我對呢啲嘢我都唔知？

答：文件係羅--羅月英畀阿嬸簽，係羅月英帶埋上嚟畀佢簽。

問：帶同準備係兩樣嘢嚟個喎。你係用...

答：Okay。

問：你係用個英文嘅字，你都識啲英文㗎，prepare喎。

答：Prepared by。

問：係呀。係咪呀？

答：即係你--你係話，唔係羅--羅月英準備嘅文件囉喎？

問：係喇。你--你聽我盤問葉先生嘅時候，你都睇到喇，佢話羅月英叫佢個親戚準備啲租約嗰啲嘢吖嘛，係咪呀？準備喎，唔係帶喎。

答：我自己用我嘅睇法就係準備就係話喺我個手袋度，攞啲文件出嚟。

問：哦。

答：畀我阿嬸去簽，呢個係佢準備咗一啲文件喺度，畀阿嬸去簽。

問：係。

答：係羅月英婆婆帶嚟畀阿嬸去簽。

問：唔。

答：唔係阿嬸自己草擬嘅文件。

問：即係你係--你--你嘅理解係咁樣。

答：我嘅理解，prepare係咁嘅...

問：所以你就用“prepared by”呢個字嘞？

答：係。

問：用“prepared”呢個字嘞。

答：喀，即係喺佢個手袋度，攞佢出嚟。

問：係咪呀？唔。咁呢個就係--咁揭番去A嗰個文件夾，54頁D嗰度喇。

答：A，54。D，揭咗嘞。

問：小段D喇，D for dog喇。咁劉芬同埋你阿哥喇，係咪呀？即係有你阿哥嘅協助之下做嘅抗辯書，佢都係同你有一個咁得意嘅理解喇，佢即係話係羅月英準備嗰啲文件，就畀劉芬簽嘅。

答：係。

問：唔。就唔係帶啲文件畀佢簽，係咪呀？唔。

答：即係帶佢上嚟喇，帶佢上嚟劉芬屋企，畀佢簽喇。

官：我有少少好奇，你教育程度去到邊？我唔記得咗。

答：中五。

官：中五。咁你喺加拿大住咗幾耐呀？

答：96年開始住，住到而家喇。

官：係。

答：96。

官：咁你啲英文都應該okay喎。咁我就係唔奇--即係--我有少少唔係好理解，即係第25段，如果你嘅意思係話佢帶嚟，咁咪brought by囉。

答：我--我呢啲對字眼嘅嘢，我係用中文去諗...

官：係。

答：Prepare就係話，好似我教啲細路，你prepare好啲功課未呀？Prepare好你啲--聽日要帶嘅書返學未呀咁樣囉。

官：係。

答：咁我就係覺得，係用prepare啫，我冇諗過係brought，即係...

官：係。

答：Brought好似--係帶喇，但係我諗...

官：係囉。

答：...就好似買咁樣，brought。

官：唔係，bought B-O-U-T就買啫，B-R-O-U-T brought就係帶吖嘛。

答：咁我就寫prepare囉。

官：咁如果我而家，今日2025年3月話畀你聽，brought似乎係更加貼近個事實，你同唔同意吖？

答：我同意。係。

官：係嘞。

答：呢個係你...

官：咁點解你做呢份證人供詞嘅時候，就諗唔到你而家諗到嘅嘢呢？

答：我--我諗唔到。我係真係...”[24]

28.  For an ordinary Chinese person with an ordinary background, the differences between “prepared” and “brought” may well be too subtle to have been noticed, but D2 was educated up to Form 5 level, used to work as a proofreader for Reader’s Digest, and lived in Canada since 1996. For such a person, it is more likely for the loose wording to have been the result of such a person not caring about accuracy and not caring about telling this Court the truth, the whole truth and nothing but the truth. It is my finding of fact that D2 never cared about the accuracy of her evidence, which made her assertions wholly unreliable. The relevant parts of D2’s evidence about D2’s previous experience in life were as follows: -

“問：你自己呢？你自己讀書又讀到幾多年班呀？

答：中五。

問：中五。當然你喺香港讀書喇，係咪呀？

答：係。

問：你喺香港長大㗎嘛，係咪呀？

答：係。

問：咁你就變咗你就--其實你除咗中文之外呢，你英文你都可以閱讀到一部分嘅。

答：一部分喇，唔算係學--唔算係暢順囉。

問：係。

答：唔。

問：你讀完書之後有冇試過做一啲文書嘅工作呀？

答：少許。

問：少許。

答：係，都有嘅。

問：少許嘅意思即係做...

答：有嘅。

問：...過啲乜嘢呢？

答：我喺讀者文摘度做過叫做校對囉。

問：係。

答：即係人哋寫咗一段嘅嘢...

問：係。

答：...咁我哋要睇下佢有冇寫漏字呀咁樣。

問：嗰啲係中文嘅？

答：有中有英㗎。

問：有中有英嘅。做咗幾耐呀？幾多年呀？

答：做咗--出嚟--年零兩年喥。

問：係。咁除此之外仲有冇再做過其他工作係同文書有關㗎？

答：有。

問：咁又做咗啲乜嘢呀？

答：我係喺政府部門度做呢個叫做CA。

問：哦，唔。你或者你講清楚啲，即係CA係咪即係...

答：助理文員。

問：係。咁就當然要接觸文字喇，包括英文同中文都有。

答：中文為多。

問：中文為多，唔。咁做咗幾耐呀呢個又？

答：十四年--十四年左右喇。

問：係。咁我睇你個證人陳述書呢，你提及就係你1996年開始呢就同你個丈夫就移民咗去加拿大吖嘛，係咪呀？

答：啱。”[25]

29.  Fourthly, D2’s witness statements clearly demonstrated to me that D2 was willing to, and did in fact, confirm as true things which were plainly completely outside of D2’s knowledge. That was telling. It seemed to me that D2 would say literally anything under oath to defend this action, even if it could be shown D2 had no personal knowledge in the matter and could not have known the truth. This is another example of D2 not caring about the accuracy of her evidence which also made her evidence generally unreliable. I do reject D2’s evidence on the issues in dispute in this action as unreliable and more likely to be false. Bearing in mind, as I should, that D2 was represented by solicitors since at least 5 May 2022[26], almost a year before D2 made her first witness statement in 2023, the following exchange in Court, as an example, illustrated the problem with D2’s evidence: -

“官：好。證人，你睇番256頁吖，第46段。

答：係。

官：呢度你個原文就係“Mr Cheung left Hong Kong for Canada in about mid or late 2022 due to his health. He is reluctant to give any statement on my behalf.”… 咁你其實係冇辦法知道你阿哥點解唔畀證供嘅，你只會知道佢講畀你聽嗰個原因係乜嘅啫，兩樣嘢不一定係相同，亦都不一定係壞心腸，可能係佢有個真正嘅原因係唔想講畀你聽。即係可能同佢嘅健康冇關係嘅，可能係第二啲原因，但係佢同你講就係健康喇。咁所以點解第46段，你講到好似你知佢個心諗緊咩嘢咁樣，你唔會知喎其實，你只會知佢同你講乜嘢嘅啫。

答：唔。

官：咁所以正確嘅寫法係咪應該好似你頭先喺證人台口頭作答咁樣，將個對話原原本本咁講出嚟呢？即係你某年某月某日，就問阿哥，你想唔想做證人呀？不如你做證人喇。跟住佢就同你講，我身體唔好呀。我唔知係咪真喇，總之我就冇追問落去喇。係咪應該係咁呢？咁你咁樣寫，即係有冇解釋點解唔係我頭先嗰個寫法咁詳細同埋準確呢？

答：我係寫得好隱晦…

…

…

官：我咁樣問，就係因為，即係我想你明白我個難處呀。我唔知事實係咩嘢㗎嘛。

答：我--我諗係咪你驚我都會講大話...

官：係嘞。

答：係咪有其--中間...

官：又或者...

答：...有其他嘅原因呢咁。

官：又或者唔好話你講大話喇，即係我嘅經驗就話畀我聽，係咪講大話都唔係個重點。可唔可靠，即係reliable，即係英文，係咪reliable先係個重點。咁如果你個證人口供，即係譬如第46段顯示到，你其實係寫緊一樣超出咗你認知嘅嘢，咁大律師結案陳詞嘅時候可能話，睇下46段喇，佢咁樣講嘢喎。超出咗認知又照寫，唔好信佢喇。Unreliable，即係不可靠。先唔好講係咪誠實先，唔好理呢樣嘢。

答：唔。

官：不可靠，unreliable。咁你會有咩嘢回應呢？如果有你就要而家講個囉喎。

答：阿哥病得好--好辛苦㗎嘞…

官：係。

答：咁--我真係唔想--佢亦都唔想，我好似當初...

官：唔係唔係唔係，等等先，等等先。

答：係。

官：你呢樣我已經理解㗎嘞。

答：係。

官：我唔係講緊呢樣嘢。我唔係怪責佢唔肯作供，又或者怪責你唔迫佢作供。唔係。我係講緊個寫法呀。

答：係。

官：個寫法就係講緊一樣超出咗你認知嘅嘢吖嘛。佢係咪reluctant你唔知㗎嘛。佢係咪因為健康唔嚟你唔知㗎嘛。咁但係你又照寫喎，咁如果大律師結案陳詞嘅時候同我講，法官大人，你睇清楚第46段，呢個證人係咁樣講嘢嘅，唔係認知範圍都照講嘅，佢唔會交代晒成個對話出嚟嘅。咁跟住用呢個嚟做基礎，話我應該唔接納你嘅證供，因為唔可靠。咁你當然覺得喂，唔係呀，我好可靠呀，你信我喇法官，咁但係你有冇多啲嘅解釋，可以即係答到大律師呢啲咁嘅陳詞呢？因為我要畀機會你解釋㗎嘛，即係我估有大律師會咁講其實。咁所以即係如果你有一個解釋，點解你46段係咁樣寫，而唔係將個對答寫出嚟，咁我就而家要知囉喎，你可唔可以講畀我聽，你有冇原因46段咁寫？

答：係健康係好差。

官：唔。

答：係。佢係真係唔想返嚟。

官：唔。

答：係。咁再中間佢有冇其他或者我諗到嘅嘢，或者佢唔--唔想講嘅嘢。

官：唔。

答：可能係有，但係我都唔知係真定假㗎嘛。

官：唔。

答：即係我唔知道佢諗嘅嘢，同我諗係咪相同㗎嘛。但係事實上佢身體係好差。

官：係。

答：喀，咁中間--我諗嘅嘢同佢諗係咪相同，唔想再同我做呢樣嘢嘅。

官：唔。

答：係--有一個原因。

官：係。

答：但係呢個原因，即係--因為我唔確實。

官：唔。

答：我亦都唔想寫落去。

官：但係客觀地你同佢有過一個對話㗎嘛，點解唔話畀我聽，喺呢度，第46段話畀我聽，對話嘅時間、地點、日期、內容呢？

答：哦，我唔知道個對話要咁樣--即係--你意思即係話喺邊年邊日問過哥哥...

官：係嘞。

答：哦，okay。即係邊年邊日問過哥哥佢唔想返嚟同我做呢個證人？

官：係嘞，我今日先第一次聽咋嘛，你呢度冇寫㗎嘛。

答：係，係。

官：個原因係咩嘢呀？點解唔寫落去呀？

答：你意思原因係--佢為甚麼唔...

官：唔係，個對話點解唔寫落第46段度？

答：係。我覺得我阿哥係會唔開心，我攞晒份遺產嘅。

官：咁同你寫唔寫個對話落第46段冇關係喎。

答：咁因為我唔知阿哥係咪咁個喎，咁我覺得如果我寫落去，我覺得好似係屈咗阿哥呢樣嘢，佢唔返嚟喎。

官：咁如果你淨係話...

答：我又要...

官：...我某年某月某日問過阿哥，佢話唔返嚟作證。咁點樣屈到佢呢？即係你連個日期都冇寫喎，即係你冇講你問過吖嘛。

答：我--我唔知道係要寫日期咋其實。

官：唔。

答：我係知道自己邊時問過佢㗎，法官大人。

官：唔，唔，唔。

答：係。我係知道自己邊時有問過哥哥㗎。

官：但係就唔知...

答：我係...

官：...要寫？

答：我係唔知要寫啫…”[27]

30.  Finally, some parts of D2’s evidence was just D2’s guesswork, which had no probative value whatsoever. I reject the same. The following exchange which contained one of D2’s admissions in relation to this neatly illustrated the problem: -

“官：你點知法律係咁呀？

答：呢個係我估計係咁嘞…”[28]

D3’s Evidence

31.  D3 was a son of Madam Chan. He adopted all contents of his witness statement and was cross-examined. D3’s evidence was unreliable as he had no first-hand knowledge and was just attempting to give evidence based on his alleged recollection of oral conversations he said he had with his mother before she passed. In his 5-page witness statement, D3 gave no particulars on the when how and what of his alleged source of information, and this was unsatisfactory. In fact, when pressed, D3’s explanation under oath was that he lost his memory because he had brain fog after getting an Omicron infection, and he said this without adducing any medical evidence of any kind. As I shall elaborate in later parts of this judgment, this created difficulties in my adjudication of D3’s pleaded case. For now, I should just explain that the relevant exchange in Court went as follows: -

“問：你口供紙入面嘅內容基本上都係從你母親或者租客嗰面聽番嚟嘅咋嘛，係咪？

答：但係我母親同我講，大寥傾偈㗎嘛。

問：我知，係喇，係。舉個例喇，當然亦都係你口供紙入面嘅內容有部分係參照啲文件嘅，係咪？

答：唔係，因為係由我母親講嘢㗎嘛。

問：Okay，得。首先呢，譬如你第八段呢，喺428頁呀。

答：428。Okay。

問：係。第八段講緊就係收到嗰啲規劃署--唔係，第七段呢，收到規劃署發出嘅通知之後呢，咁你母親就委任顧問公司向政府申請許可嘅，見唔見到？

答：見到。

問：咁但係申請嘅過程你係唔知㗎嘛，係咪？

答：唔係喎，佢有啲嘢同我講過，話呢一個去申請嗰度嘅時間呢，政府係問佢「嗰度你究竟點樣？」咁我咪話「有乜點樣啫，喂，你申請咗個牌就係你㗎喇，側邊嘅嘢你唔需要理㗎，你有個牌，你買返嚟嗰幅地到而家都冇改變過嘅，就係咁囉」。

問：呢啲對話或者係呢啲嘢，你覺得重唔重要呀？

答：重要㗎，因為我阿媽問我嘅嘢嚟㗎嘛。

問：係，即係你提...

答：佢問我究竟點樣做，我話使乜點做啫。

問：係。

答：政府發信畀你，你咪照申請牌囉。

問：係。喺你口供紙冇提到幾時、幾日你母親向你索取意見，跟住你又畀咗啲咩嘢意見嘅。

答：呢啲純粹家庭常話，我使乜要講呢啲呢？

問：Okay。

官：唔係喎。證人你其實明唔明你頭先個誓詞㗎？

答：我明。

官：事實之全部吖嘛。

答：唔係，因為當時我講呢一段嘢呢，我係知道，但係我唔需要講出嚟㗎嘛，因...

官：點解唔需要呀？我就係唔明。事實之全部喎。唔係部分事實喎。

答：唔係，因為本身佢有啲文件全部擺晒喺我度吖嘛。

官：係。

答：咁佢講，我只係畀意見，我--以我嚟講，感覺，「喂，阿媽你做嘅嘢，你揸主意喇」。

官：或者咁樣問你喇，你睇下第七段吖。

答：唔。

官：第二行最尾，「陳氏一直都知道」，講到呢度先。

答：唔。

官：一直，係邊日到邊日呀？

答：一直到知邊日...

官：係呀，一直，即係邊日開始呀？

答：佢由呢個買咗幅地嘅時間囉，1993年囉。

官：咁點解唔係寫個日期吖？

答：呢度我--因為我唔係一個律師我唔知道需要寫日期。

官：你唔係律師一件事吖。你有請律師代表你吖嘛。

答：係呀，我有請律師代表我啫，但係日期嗰度呢，我只係記得我嗰陣時1993年嘅時間佢提過嘅嘢，但係真正嘅日子我唔知道究竟係幾時，我點樣去提番個真正日子落去呢？

官：呢個就係跟住我哋要問嘅問題喇。大律師就係問緊呢樣嘢囉。你嗰個資料來源，係咪應該要交代呢？譬如你話「陳氏一直都知道」，咁你唔係陳氏吖嘛，你係佢個，即係...

答：我係佢個仔。

官：係嘞。

答：係喇。

官：咁所以，你係咪應該要話畀我哋聽，你點知佢知呢？你冇講喎。

答：因...

官：你可唔可以解釋，點解你冇講，點解你知佢知呀？

答：唔係，佢當時係同我傾過呢樣嘢吖嘛。

官：係，點解冇寫喺第七同第八段，你個知識來源，你個資訊來源，係邊年、邊月、邊日同你阿媽講，從而得知佢知呢？

答：邊段嗰度我從而得知佢知，係因為當時...

官：唔係，唔係，唔係，我唔係問你點解知，我問你點解冇講你點解知。

答：我點解冇講呀？

官：係。

答：因為我都冇為意呢樣嘢，我仲...

官：冇為意。

答：我冇，我冇為意到要將啲時間、日期嗰啲盛呢，要講晒出嚟吖嘛，我只係我淨...

官：咁畀口供唔講時間、日期，講咩嘢呀？

答：唔係呀，因為我哋呢啲呢，到咗咁嘅年紀，我又中過呢一個Omicron，我個腦袋有幾清晰呢，我只係記得嘅嘢我就即係講幾多囉。

官：咁你記唔記得你同阿媽個對話係邊年、邊月、邊日喺邊度同邊個在場嘅情況之下，喺咩嘢情況之下講呢？

答：呢樣唔記得，我淨係喺屋企囉。

官：邊年知唔知呀？

答：邊年呀？即係如果你話呢一個買嗰幅地嘅時間，咪大概1993年至94年喥囉。

官：買完即刻同你講呀？

答：佢未買之前已經同我講話嗰幅地呢--我初頭我點樣呢，佢同我講話「喂，我買幅地」，我話「爛地你買嚟做乜嘢呀？買嚟做咩嘢呀？爛地，你都冇租收冇盛」，佢話「唔係呀，做車房㗎」，咁車房，由得佢囉，咁咪照買囉，起碼你有租收先喇。

官：等等先，停停先，停停先，停停先。咁你而家講到㗎嘛，而家2025年3月你講到成個對話㗎嘛，你啱啱講緊喇，即係賣--「爛地做乜買呀？」你講到，你記得，呢個對話㗎嘛。

答：係呀，我事...

官：而家條問題就係...

答：我事後先至記得㗎，我...

官：等等，等等，等等，等等，而家條問題就係，既然你而家，2025年，講到，請問，點解你2023年4月，做呢份證人口供嘅時候，冇寫呢？

答：唔係，因為我嗰陣時我唔記得啲嘢吖嘛，我中咗Omicron之後我又要睇醫生又盛。

官：咁請問點解會2023年唔記得，2025年反而記得呢？

答：我走去嗰度有些少回憶，因為我經常都而家都要去嗰間車房去睇。

官：即係，回憶，消失咗，返番返嚟？

答：係呀，有時啲嘢我成日都記唔到㗎喇，因為我自己中咗Omicron之後有腦霧有盛。

官：係。

答：我而家都退休埋，我連車都唔夠膽揸。

官：即係你而家個記憶都係好危險咁樣㗎？

答：唔係記憶好危險，係記憶力裡面衰退咗。

問：記憶力衰退咗反而仲記得？

官：係嘞，我就係想知嘞。

答：佢突然間喺個腦裡面閃出嚟，人就係咁㗎喇。”[29]

Chan Kin Tak’s Evidence

32.  Chan Kin Tak was a tenant of Madam Chan. He adopted his witness statement and was cross-examined. Chan Kin Tak’s evidence was unsatisfactory. It appeared to me that Chan Kin Tak had in most likelihood signed his witness statement without reading it first, or without attempting to understand any of its contents first, and clearly without caring about its truth or falsity. That being the case, his evidence carried no, or at the very least negligible, weight. I should not place any reliance or weight on Chan Kin Tak’s evidence. Citing one example, as follows, by way of illustration, would be more than sufficient.

33.  At §2 of Chan Kin Tak’s witness statement, which he adopted under oath without correction, Chan Kin Tak said this: -

“本人已翻閱《黃志堅的證人陳述書》第11段，並確定其內容為事實。”[30]

34.  Under cross-examination by Mr Francis Yip, Counsel for D2, Chan Kin Tak contradicted the above in this manner: -

“問：你嘅證人口供呢，㨴去第417頁吖。好嘞，第2段，嗰度講你就話「本人已翻閱《黃志堅的證人陳述書》第11段，並確定其內容為事實」。

答：係呀。

問：見唔見到？你知唔知黃志堅嘅證人陳述書嘅第11段講乜嘢㗎？

答：佢咪講我租嘅咩嘢囉，租嘅時間呀嗰啲嘢各樣嘢囉。

問：如果講，你嘅認知就係第--黃志堅嘅證人陳述書第11段就係講你租地方嗰啲嘢？

答：係呀。

問：係咪呀？嗰啲嘢你自己都知㗎。

答：係呀，咪知囉。

問：係囉。

答：咪我咪簽咗名囉。

問：咁你嘅記憶黃志堅證人陳述書第11段有冇提過啲咩嘢專家報告嗰啲咁嘅嘢㗎？

答：冇。

問：冇嘅。咁黃志堅先生有冇同你講，就住某啲文件呀，佢又有啲睇法，問你同唔同意咁呀？

答：咩嘢？咩嘢文件呀？

問：Okay。或者直接啲喇，咁你㨴去第四--文件夾B429頁吖。429頁其實就係黃志堅先生嘅證人陳述書嚟嘅，第11段就講緊黃志堅先生就睇過雙方嘅專家證人嘅專家報告嘅，你唔知道--sorry，唔好意思，你唔知道其實黃志堅先生嘅陳述書第11段係講專家報告，係咪？你正話講。

答：專家唔--冇喎。

問：係。

答：冇講咩嘢專家報告喎。

問：所以其實你話已經翻閱咗黃志堅先生陳述書第11段，其實你唔知道第11段講乜嘢㗎，係咪呀？

答：唔知呀。

問：你唔知道入面有提--有個--提及專家報告㗎嘛，係咪？

答：咩嘢？咩嘢？咩嘢話？

問：你唔知黃志堅先生嘅陳述書第11段...

答：唔知，唔知。

問：...有提及專家報告嘅？

答：唔知。

問：唔知吖嘛？

答：唔知。

問：但係你睇番417頁呢，你自己嘅口供第2段呢，嗰度講你話睇過陳--黃志堅先生嘅證人陳述書嘅第11段，咁呢度係錯個囉喎，啱唔啱呀？

答：我唔明，我唔明你呢條喎。

問：好，或者我另一個問嘅方法。

答：係呀。

問：等等。你其實就唔知道黃志堅先生證人陳述書第11段講乜嘢嘅，係咪？

答：唔係呀，我唔明佢--你呢條個問題吖嘛。

問：唔係，我而家咪就問你囉，你其實就唔清楚黃志堅先生陳述書嘅第11段講乜嘢嘅，同唔同意呀？

答：咩嘢呀？

問：或者再褪番前啲喇，你唔知道黃志堅先生嘅陳述書有提及專家報告嘅，係咪呀？

答：咩嘢專家報告我唔知喎。

問：係喇。咁而家正話畀你睇嘅就係黃志堅先生嘅陳述書第11段就有提到專家報告嘅。

答：佢有提我唔知喎。

問：係囉，咁所以咪就係話你--如果你有睇過黃志堅先生陳述書嘅第11段呢，你應該知道嗰度有提及專家報告㗎嘛，啱唔啱呀？

答：佢冇寫專家報告，我點知咩嘢叫專家報告啫。

問：咁第2段你話「本人已翻閱黃志堅先生陳述書第11段」係咪你畀嘅資料嚟㗎？係咪你講畀律師聽等佢寫落嚟㗎？

答：係呀。

問：雖然你唔知第11段講乜嘢，係咪？

答：咁佢問我咩嘢我咪講咩嘢囉，咁佢咪寫落去囉，我都唔知點。[31]

35.  By adopting §2 of Chan Kin Tak’s witness statement without correction, Chan Kin Tak either knowingly gave false evidence under oath or was reckless vis-à-vis his duties to only say what he believed to be true under oath. I observed Chan Kin Tak’s demeanour and all I would say in relation to this is that Chan Kin Tak did not seem to care about his duties as a witness. I place no weight on Chan Kin Tak’s evidence.

My View on P’s Case

36.  Following from my view on the evidence as explained above, on the adverse possession main issue, P’s case should prevail. There is no substantial dispute between any of the parties on the principles of adverse possession applicable to the present scenario (unlike the easement question – more on that below). Only a brief explanation is thus called for.

37.  As I had said in Fung Wan Ming v Ng Pik Kwan Karen [2018] HKDC 365 (§11), the law of adverse possession is trite. The leading case is the judgment of the Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Anor (No. 2) (1997-1998) 1 HKCFAR 55, where the following was said by Li CJ: -

“… A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess… it is the intention of the squatter that is essential... The requisite intention to possess has been referred in various authorities under its Latin tag “animus possidendi”... As Slade J observed in Powell v McFarlane (1979) 38 P & CR 452 at pp.471-472, the intention to possess requisite for adverse possession:

… involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.

The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

38.  Adverse possession, for however long, does not operate as a conveyance and does not entitle the squatter to be registered as an owner – Lam Sai Wan v Minloy Ltd [2022] 1 HKLRD 544 at 558 (§36) per Chu JA – for the simple reason that the land registration system in Hong Kong is a document registration system which does not register title at all.

39.  On a squatter’s entitlement to commence proceedings against a trespasser, the best example is the case of Lau Oi Kiu v Man Chun Shing [2015] 4 HKC 73 (§9), where DHCJ Paul Lam SC had ruled in favour of a person who was never the registered owner in question. Since legal rights vis-à-vis any particular piece of land in Hong Kong are relative, there is no injustice in allowing a person with a higher right to sue another person with a lower right, even if the person with a higher right is not himself the person with the highest right. See, for example, Chan Wai Hung v Tung Lo Court (IO) [2023] 5 HKLRD 1 [2023] HKDC 983.

40.  Given the above, my acceptance of P’s factual evidence in its entirety, my rejection of the factual evidence adduced by D1 and D2, the wholly unchallenged expert evidence and aerial photos, and the absence of any real challenge on quantum, the natural legal consequence should be for me to rule in P’s favour on adverse possession, eviction and mesne profits issues.

41.  As to P’s claim of a vehicular right of way, via the doctrine of “lost modern grant”, there is an interesting dispute on the law.

42.  It is more convenient to start with the submissions of Mr Yip, Counsel for D2, on “lost modern grant”. Mr Yip drew my attention to the leading case of China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 (Lord Millett NPJ), and the case of Lee Kok Che v Royal Mortgage [2023] 2 HKLRD 292 [2023] HKCFI 648 (Keith Yeung J), both of which I examined with interest. Lee Kok Che in turn referred to Cheung Leung Tak v Cheung Chi Hung [2018] 5 HKLRD 579 [2018] HKCFI 2345 (Recorder Stewart Wong SC), which I looked up and read. In Cheung, the Learned Judge made it clear that in his view, the period of user required by law to enable a claimant to invoke the doctrine of lost modern grant for the purpose of getting an easement declaration was 20 years counting up to the date of the writ (see his §39). Based on the above, Mr Yip suggested to me that P’s pleaded case on right of way, based on the doctrine of lost modern grant, was legally misconceived. By Mr Yip’s astute observations, P’s case in relation to this was uninterrupted user since “the middle of 2000”. The amendment of P’s writ was effected in August 2019, slightly over 19 years from “the middle of 2000”. Mr Yip’s simple point was that “19” was not “20” so P sued a year too soon. On this ground alone, so Mr Yip suggested to me, P’s pleaded claim for a declaration of vehicular right of way, via the doctrine of lost modern grant, must be dismissed.

43.  To counter that argument, Mr Koo, Counsel for P, made novel submissions, one in writing[32], another one orally[33].

44.  The one in writing went as follows: -

“In the present case, Lo’s designation of the Purple Portion as the vehicular access to the Yellow Portion, his letting out the Yellow Portion with the Purple Portion as the only vehicular access, together with his tenants’ use of the same as a means of access and egress to the Yellow Portion since the middle of 2000, constitute compelling evidence that a prescriptive right based on “lost modern grant” should be presumed. Regarding the requisite period for the Court to make such a presumption, it is respectfully submitted that it is not a fixed period of “20 years” but simply a long period of time. As stated in China Field Ltd [P#12] at 360 F (para. 42), the acquisition of rights by prescription is based on the well-settled principle that where there has been “long enjoyment of a right” (rather than a fixed period of time), the right should be presumed to have a lawful origin… Undoubtedly, it is anomalous to require 20 years of enjoyment for acquiring a right of way where the requisite period for established a possessory title is merely 12 years. Therefore, in order to resolve this anomality, the requisite period for a squatter to (in effect) acquire a prescriptive right of way under the doctrine of lost modern grant where a squatter has established a possessory title by adverse possession for 12 years, should likewise be 12 years.”

45.  That submission had a certain degree of attractiveness, as one may argue the origin of the reference to “20 years’ enjoyment” (instead of any other number of years – such as 19 or 21 years) must be the English Limitation Act 1623, which fixed a 20-year period of limitation for actions to recover land in England[34]. It is indeed anomalous, if not bizarre, to insist that in this day and age, in Hong Kong, the period of usage required for the purpose of “the doctrine of lost modern grant” should somehow be 8 years longer than the current period of 12 years possession required to establish a case of adverse possession. One may also say whilst “bright line rules” provide greater certainty, which is important, they reduce flexibility, which may well be undesirable. However, at the end of the day, given the normal and well-known practice (irrespective of whether there is such a strict rule) that only a 20 years (counting up to the date of the writ) usage would entitle a plaintiff to invoke the doctrine of lost modern grant in Hong Kong, I am not at all prepared to disturb or change the practice, irrespective of whether I could if I wanted to. It seems to me that for this whole area of law on the acquisition of easements by prescription, certainty is more important than flexibility, and the practice of not granting any declaration unless a 20 years (counting up to the date of the writ) usage had been proven should be kept, and any reform in relation to this should be left to the legislature. For these reasons I decline to grant any easement declaration in this case unless a 20 years (counting up to the date of the writ) usage had been proven.

46.  The submission made by Mr Koo, Counsel for P, orally, went as follows: -

“古先生：咁另外有一點呢就關乎於嗰個--誒，路權喇，個lost modern grant 嗰度喇。嗱，咁呢度有一個二十年同十二年嗰個問題喇。

官：係。

古先生：咁關於十二年嗰個喇，我哋個陳--我--我個書面陳詞已經講咗。但我都想再補充一點，好抱歉，我昨天都冇加入去我嗰個補充陳詞嗰度。

官：唔，唔，唔，唔。

古先生：就其實嗰個二十年，就算我當葉律師所講嘅--葉大律師所講嘅二十年係正確都好喇，但嗰二十年呢就唔應該淨係計到去開展訴盡--開始訴訟嗰個日期。因為其實嗰個同嗰個逆權侵佔係唔同嘅，逆權侵佔呢就因為有Limitation Ordinance呀，係講到明就係話你超--如果超過咗十二年呢，你就唔可以--個業主就唔可以recover possession of the land。

官：係，Section 7(2) 同埋17。

古先生：係嘞，冇錯。

官：係，係，係。

古先生：喀。咁而呢一個呢就唔係話你唔可以去--誒，法律上冇--冇話你--你超過咗二十年，你先可以開展訴訟去申請嗰個路權。法律只不過就係話，如果你有sufficient long period of time用嗰個路權呢，其實--咁所以我覺得應該係佢--假設就算二十年都好喇，嚟到今天呢，毫無疑問呢嗰個時間亦都超過咗二十年。而由嗰個開展訴訟到而家今日呢一日喇，亦都有證據證明呢--嗱，葉永盛先生仍然有使用嗰個路權，而冇--而業主係冇去干擾或者准許佢使用嗰個路權，所以仍然都係有一個可以繼續即係嗰個presumptions係可以適用於喺開展訴訟之後到今天嘅日子，所以無論如何就算二十年都好喇，法庭亦都應該可以就嗰個路權方面呢係判呢個原告人勝訴。”

47.  That submission also had a certain degree of attractiveness as it seems absurd for me to dismiss P’s claim in relation to this on a technical issue (namely, 19 years’ usage only if time counted to the date of the writ), only for P to then be able to get the exact same relief by issuing a new writ, as it was clear from the evidence that if time can be counted up to the date of the trial in March 2025, the 20 years usage requirement would have been met. However, the general rule in civil litigation is that the cause of action relied upon to start the action must be in existence at the point of issuance of the writ, and a litigant cannot issue a writ prematurely and then wait for it to become a mature one through the passage of time alone. Again, I am not at all prepared to disturb or change this general rule even if I could do so. I decline to grant any easement declaration in this case by changing the orthodox or traditional “cut off time” from the date of the writ to the date of the trial.

48.  By reason of the above, I dismiss P’s claim of a vehicular right of way, entirely without prejudice to P’s entitlement to bring a fresh action in relation to the same.

49.  In my view, P proved his case on all issues other than the right of way issue. I accordingly enter judgment in favour of P (against both D1 and D2) and grant the following reliefs to P: -

(1)  D1 shall, at or before 4pm on Friday 7 November 2025, deliver vacant possession of the Yellow Portion (as per the Re-Amended Statement of Claim filed by P in this action) to P.

(2)  D1 shall forthwith pay the sum of HK$165,000 claimed by P as arrears of rent to P.

(3)  D1 shall forthwith pay mesne profits, assessed by me to be at the rates of HK$20,400 per month from 20 March 2019 to 19 March 2021, HK$19,800 per month from 20 March 2021 to 19 March 2023, and finally HK$26,500 per month from 20 March 2023 until delivery of vacant possession of the said Yellow Portion to P, to P.

(4)  D1 shall pay statutory interests, on all of the said sums, to P, at judgment rate(s) from 10 October 2025 until full payment.

(5)  It is hereby declared that P had, for a period of over 12 years, been in adverse possession of the Red Line Area (as per the Re-Amended Statement of Claim filed by P in this action) and acquired a possessory title of or over the same.

(6)  It is hereby declared that by operation of the Limitation Ordinance (Cap 347), D2 ceased to be, and is no longer, entitled to recover possession of the Red Line Area (as per the Re-Amended Statement of Claim filed by P in this action) from P.

(7)  As between P and D1, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D1 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither P nor D1 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

(8)  As between P and D2, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither P nor D2 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

(9)  As between P and D3, there be an order nisi that there be no order as to costs, and this order nisi shall become absolute without further order if neither P nor D3 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

My View on D1’s Case

50.  Following from my view on the evidence as explained above, D1’s case should be, and is hereby, dismissed.

51.  Costs should follow the event – Pacific Ace Finance Limited v Delay [2023] 4 HKC 424 [2023] HKDC 611 (§28, per DDJ Kenneth KY Lam). As between P and D1, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D1 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither P nor D1 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

52.  For completeness I should mention that D1 pleaded “estoppel” in his Re-Amended Defence[35], but that plea was in my view defective. As I had said in Lam Chung Ping v Chan Yuet Kuen [2025] HKDC 552, when it comes to complying with pleading rules, a litigant-in-person has the same duties as a represented litigant. All pleading rules are important – see Lam Chung Ping v Chan Yuet Kuen [2025] HKDC 476. If a litigant were to run a case of estoppel that litigant must specify whether he is running a case of estoppel by representation or estoppel by convention, etc., and particulars of detrimental reliance, change of position, etc, if alleged, must be spelt out in the main body of the pleading itself. In our case D2 mentioned the word “estoppel” without elaboration. In any case, there was no, or insufficient, evidence of detrimental reliance or change of position[36]. That being so, I disallow D1’s attempt to run an unclear case of estoppel. For the avoidance of doubt, even if I were to allow D1 to run a case of estoppel, I would have dismissed D1’s assertion on the evidence.

My View on D2’s Case

53.  Following from my view on the evidence as explained above, D2’s case should be, and is hereby, dismissed. In my view, D2 is entitled to a more comprehensive explanation as to why she lost, and I shall provide one hereinbelow.

54.  I should start with D2’s submissions on “implied licence”. In gist, D2 suggested, in her written closing[37], that her plea of “sub-license”[38] or “sub-licensee”[39] made it possible for her to also run a case of “implied licence” at the trial. With respect, I disagree.

55.  Mr Edward K H Ng, Counsel for D3, drew my attention to the learned observation of Recorder William Wong SC in Siu Shu Ching v Siu Kwok Cheung [2022] HKCFI 594 (§72), as follows: -

“Mr Chong submitted that a plea of an implied licence is a plea of law and as such there is no need to plead the same. So long as the material facts that the Plaintiffs seek to rely on are pleaded, that is sufficient. I do not agree. An implied term of a contract or an implied license or consent is not just a legal consequence but a material fact that had to be specifically pleaded…”

56.  I agree with the above.

57.  Indeed, I agree with the submission of Mr Ng that whilst the laws of Hong Kong do recognize the possibility that spoken words or overt acts could provide the “factual underpinnings” for a license or permission to occupy land to be implied as a matter of fact without the licensee’s or indeed any person’s acceptance – see Poon Chi Hang v Lai Ho Sun [2021] HKCA 1611 (§§14 & 15, per Barma JA) & Smith v Molyneaux (2017) 1 P & CR 7 [2016] UKPC 35 (Privy Council) – the legal duty would still be on D2 to expressly identify and plead those spoken words or overt acts in her own pleadings so as to give other parties sufficient time to investigate those allegations, gather the necessary counter-evidence, and prepare for the trial in a meaningful manner. D2’s failure to identify and plead those material facts in her own pleadings was fatal to D2’s attempt to run an argument in relation to the same. Our pleading rules are extremely important and must be properly complied with. See, e.g., Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§146, per Deputy Judge Kenneth KY Lam) and Sinoearn v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 (§§30 to 34, per Ribeiro PJ), or Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663 (§§21 to 26, per Ma CJ). It was wholly unacceptable for D2 to attempt “boxing in the dark” (ie punching others with the lights off). I disallow D2’s attempt to do so.

58.  In any case, as had been helpfully pointed out by Mr Ng, even if I were to allow D2 to run an “implied licence” argument, that argument would fail on the evidence. Having rejected D2’s evidence as unreliable and more likely to be false (see above), the totality of all circumstances did not point to an implied licence. The circumstances pointed to Madam Lau abandoning her trespassed land for well over 12 years and the laws of Hong Kong as they now stand operate in such a manner they prohibit the recovery of that piece of land from P or D3 after those 12 years.

59.  Mr Yip, Counsel for D2, referred to Tsang Woon Ming v Tsan Hing Tat Heidi [2024] 1 HKLRD 316 [2023] HKCA 1322, and also Clarke v Swaby [2007] 2 P & CR 2 [2007] UKPC 1, in D2’s written closing (§45), and then jumped to the proposition (§46) that an application by a person to the Government for a change of land usage necessarily created an implied licence to the squatter in question. I reject the proposition. Even assuming someone made an application, there could be many possible reasons why any person made the application, or allowed an application to be made. All of Madam Lau, Madam Law and Madam Chan passed away before the trial and did not give sworn evidence before me. Having rejected D2’s evidence as unreliable and more likely to be false there was no reliable evidence that any application was made or made by reason of a licence. In fact, even in §§25 to 27 of D2’s own witness statement[40],“implied licence” was never mentioned, and D2 was basically just guessing what could have happened. Such guesswork has no probative value whatsoever. No advocate had ever explored this properly in the course of the trial, and this was as it should be since implied licence was never a pleaded issue. D2’s bold proposition has no, or at least insufficient, procedural, evidential or logical foundation, and is rejected. In my view, there was no relevant licence, implied or otherwise, in this matter. It is my finding of fact that Madam Lau abandoned her land instead of licenced it to others for over 12 years.

60.  I should then deal with D2’s submissions on Kan Kam Cho v Kan Chiu Nam (2008) 11 HKCFAR 538, which I considered. In my view, Kan does not assist D2. At all material times, Madam Law was a trespasser instead of a tenant under a lease for a term of years. Madam Lau was never a “reversioner” with her interests being made subject to a lease, or indeed any legal or equitable estate in land. Authorities on “reversion” scenarios have no application in our case. In this regard, I agree with the submissions of Mr Ng, Counsel for D3, that had D2 been minded to run a reversion case, it would have been necessary for D2 to plead a reversion case specifically, with full particulars as to why Madam Lau was alleged to be a reversioner. Whether on established pleading rules or on my view on the evidence (see above), I reject D2’s submissions on Kan.

61.  In fact, Mr Koo, Counsel for P, raised an even better point that D2 seemed to have failed to appreciate a licence (even if proven by reliable evidence) is not legally a lease. I agree with Mr Koo’s written submission in relation to this, which is as follows (§§23 to 25): -

“… A licence is distinct from a tenancy or lease, in that a licence does not create or confer any estate or interest in land, and it merely renders lawful an act (such as occupation of land) which otherwise would be unlawful. Accordingly, a licensee occupies land not in his own right but solely by virtue of the licensor’s (land-owner’s) right. Therefore, if one has adverse possession of land, such possession is adverse against the right of the land-owner. The legal principles in Kan Kam Cho, which apply to tenancy, have no equal application to licences whatsoever.”

62.  In my view, it is crystal clear, on the evidence and on the law, that it was Madam Lau (and, upon her death, D2) who was the person who had been dispossessed by P and D3.

63.  As to D2’s submissions on the other parties’ easement claims in D2’s written closing (§49 onwards), all I really need to say vis-à-vis the evidence is that neither Madam Lau (who passed away before trial) nor D2 gave reliable evidence which could rebut the evidence adduced by P or D3 on this or other issues at the trial. The disagreement between P and D2 on the legal principle of “lost modern grant” had been dealt with above. My ruling on the same results in me dismissing P’s claim on the same, but does not affect the position of D3.

64.  On the basis of the above, D2’s counterclaim is dismissed.

65.  Costs should follow the event – Pacific Ace Finance Limited v Delay [2023] 4 HKC 424 [2023] HKDC 611 (§28, per DDJ Kenneth KY Lam) – so that (1) as between D2 and P, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to P, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither D2 nor P takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied; and (2) as between D2 and D3, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to D3, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither D2 nor D3 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

My View on D3’s Case

66.  Whilst D3’s pleading is the clearest of all, assessing D3’s case is the most difficult, because unlike the situation regarding P’s case (where P’s sworn evidence was inherently probable, logical, reliable and accepted by me as true), D3’s sworn evidence was actually not of the highest quality (see above). That said, D2’s sworn evidence was worse. Having examined all evidence cautiously and holistically I do prefer D3’s evidence over D2’s evidence and accept D3’s sworn evidence as more likely to be true. In my view, D2 is entitled to my full reasons vis-à-vis why I prefer D3’s evidence over D2’s evidence when both sets of evidence consisted mostly of hearsay, and both sets of evidence could be problematic. The gist of my full reasons is one of inherent probabilities. I should explain, which I hereby do.

67.  I read and re-read D3’s witness statement[41] just as I did for all other witness statements placed in the Trial Bundle. In gist, it said D3 was a son of Madam Chan. Madam Chan passed away on 19 May 2019. Back in 1993, Madam Chan bought a piece of land called Section D of Lot 938, DD 77, New Territories. In 1994, the Hong Kong Government at the time took a part of that land, and the remaining part (“Chan’s Land”) remained registered under Madam Chan’s name. Chan’s Land was immediately next to the land forming the subject of this litigation, registered under the name of Madam Lau (and, after Madam Lau’s death, D2). So far, such contents of D3’s witness statement are agreed. D3 then moved on to refer to expert evidence already filed and asserted that based on the expert evidence, D3’s case must be true, whilst D2’s case should be false. The contemporaneous aerial photos taken by independent entities in particular objectively showed that it was inherently likely, if not indisputable, that the relevant land areas forming D3’s current claims could not have been used by Madam Law for farming purpose, which meant, so the argument went, whatever license had been granted to Madam Law or other farmers, that license did not or would not affect D3’s current claims. If the contemporaneous aerial photos taken by independent entities are examined, then D3’s case is inherently probable, whilst D2’s case cannot possibly be true.

68.  It seems to me that D3’s argument based on photos, as set out in D3’s witness statement and briefly summarized above, is perfectly valid, irrespective of whether D3 had brain fog. It is my view that I should assess D3’s case by reference to such photos, and arguments based on such photos, instead of the quality of D3’s human memory. On this basis I take the view that D3’s case is inherently more likely, and I rule in favour of D3.

69.  In this connection, I agree with the written closing of Mr Ng, Counsel for D3, that most facts in support of D3’s case are undisputed[42]. I independently examined all expert reports and the photos within them[43]. I agree with all points made by Mr Ng vis-à-vis the same. The Joint Expert Statement of Chan Hon Kwan Henry and Ng Jor Choi dated 20 April 2023 re-produced at page 671 of the Trial Bundle is particularly helpful as I can see that the parties’ experts actually managed to reach a full agreement with each other on all observations on usage, and the agreed observations point to D3’s case being entirely true. D2 had no sustainable answer to Mr Ng’s point that the aerial photos independently showed D2’s case (as summarized in §9 above) to be inherently more likely to be true.

70.  I enter judgment in favour of D3 vis-à-vis D3’s counterclaim (against P) and grant the following reliefs to D3: -

(1)  It is hereby declared that D3 had for a period of over 12 years been in adverse possession of the Enclosed Area (as defined in the Amended Counterclaim filed by D3) and acquired a possessory title of or over the same.

(2)  It is hereby declared that by operation of the Limitation Ordinance (Cap 347), D2 ceased to be, and is no longer, entitled to recover possession of the Enclosed Area (as defined in the Amended Counterclaim filed by D3) from D3.

(3)  It is hereby declared that D3 acquired an easement and a right of way by prescription based on the doctrine of lost modern grant over the Purple Portion (as defined in the Amended Counterclaim filed by D3).

(4)  As between D3 and D2, there be an order nisi that costs of this action, including all costs previously reserved if any, be paid by D2 to D3, to be taxed with Certificate for Counsel if not agreed, and this order nisi shall become absolute without further order if neither D2 nor D3 takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

(5)  As between D3 and other parties there be an order nisi that there be no order as to costs and this order nisi shall become absolute without further order if none of these parties takes out any summons, by 4pm on Friday 24 October 2025, for it to be varied.

Conclusion

71.  For the reasons set out above, I grant the reliefs set out in §§49 & 70 above, and dismiss all other claims or counterclaims not specifically mentioned above.

72.  I thank Mr Ernest Koo, D1, Mr Francis Yip, Mr James Wong and Mr Edward K H Ng for their most able assistance.